Regulation of Elections

The Federal Constitution provides that the times, places, and manner of holding elections for Senators and Representatives is prescribed in each state by the state legislature[i].  However, Congress may at any time by Law make or alter such regulations, except as to the places of choosing Senators.

Accordingly, the Constitution grants the states broad power to prescribe the times, places, and manner of holding elections for senators and representatives, which power is matched by state control over the election process for state offices[ii].

Pursuant to the Elections Clause, states maintain a discretionary power over elections[iii].  The states are given and in fact exercise wide discretion in the formulation of a system for electing representatives in Congress[iv].

The Constitutional provisions embrace the authority to provide a complete code for congressional elections as to times and places, notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns[v].

Thus, the power of the states for electing federal representatives encompasses nearly every procedural facet of a federal election.  The Elections Clause grants to the states broad power to prescribe the procedural mechanisms for holding congressional elections[vi].

States can within limits specify the qualifications of voters in both state and federal elections[vii].  The Constitution makes voters’ qualifications rest on state law even in federal elections.  A State may if it chooses require voters to pass literacy tests, provided of course that literacy is not used as a cloak to discriminate against one class or group.

In exercising power, the Congress may supplement the state regulations or may substitute its own[viii].  It may impose additional penalties for the violation of the state laws or provide independent sanctions.  It has a general supervisory power over the whole subject.

When the federal statutes speak of the election of a senator or representative, they plainly refer to the combined actions of voters and officials meant to make a final selection of an officeholder[ix].

Elections for President and Vice President of the U.S. are indirect elections.  The voters cast ballots for electors of the U.S. Electoral College, who in turn directly elect the President and Vice President.

Presidential elections take place quadrennially.  The process is regulated by a combination of both federal and state laws.  Each state is allocated a number of Electoral College electors equal to the number of its senators and representatives in the U.S. Congress.

The President is vested with the executive power of the nation.  The presidential election and the vital character of its relationship to and effect upon the welfare and safety of the whole people is an important matter and Congress possesses power to pass appropriate legislation to safeguard such an election from the improper use of money to influence the result[x].

Presidential electors are officers of the state and not federal officers[xi].  Presidential electors exercise a federal function in balloting for President and Vice-President but they are not federal officers or agents any more than the state elector who votes for a congressmen[xii].  They act by authority of the state that in turn receives its authority from the Federal Constitution.

By the Constitution of the U.S., the electors for President and Vice President in each state are appointed by the state in such manner as its legislature may direct[xiii].  Their number is equal to the whole number of senators and representatives to which the state is entitled in Congress.  The sole function of the presidential electors is to cast, certify, and transmit the vote of the state for President and Vice President of the nation.

Control and regulation of state and municipal elections rest with the state.  A state is free to conduct its elections and limit its electorate as it may deem wise.  However, its action may be affected by the prohibitions of the Federal Constitution or in conflict with powers delegated to or exercised by the national government[xiv].

Congress has no general power to regulate elections in regard to state or local officers; rather, such legislation by Congress must be authorized pursuant to the provisions of the Fourteenth or Fifteenth Amendments to the Federal Constitution[xv].

Reasonable regulation of elections does not require voters to espouse positions that they do not support; it does require them to act in a timely fashion if they wish to express their views in the voting booth[xvi].

The right to vote is the right to participate in an electoral process that is necessarily structured to maintain the integrity of the democratic system.  The right of individuals to associate for the advancement of political beliefs and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively, ranks among the most precious freedoms[xvii].

However, the state has a right to require candidates to make a preliminary showing of substantial support in order to qualify for a place on the ballot, because it is both wasteful and confusing to encumber the ballot with the names of frivolous candidates[xviii].

The state also has the right to prevent distortion of the electoral process by the device of party raiding, the organized switching of blocs of voters from one party to another in order to manipulate the outcome of the other party’s primary election.

In Burdick v. Takushi, 504 U.S. 428 (U.S. 1992), the court held that common sense, as well as constitutional law, compels the conclusion that government must play an active role in structuring elections.  There must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.

[i] USCS Const. Art. I, § 4, Cl 1.

[ii] Tashjian v. Republican Party, 479 U.S. 208 (U.S. 1986).

[iii] Campbell v. Davidson, 233 F.3d 1229 (10th Cir. Colo. 2000).

[iv] Millsaps v. Thompson, 259 F.3d 535 (6th Cir. Tenn. 2001).

[v] Association of Community Orgs. for Reform Now v. Miller, 129 F.3d 833 (6th Cir. Mich. 1997).

[vi] Cook v. Gralike, 531 U.S. 510 (U.S. 2001).

[vii] Gray v. Sanders, 372 U.S. 368 (U.S. 1963).

[viii] Smiley v. Holm, 285 U.S. 355 (U.S. 1932).

[ix] Foster v. Love, 522 U.S. 67 (U.S. 1997).

[x] Burroughs v. United States, 290 U.S. 534 (U.S. 1934).

[xi] Walker v. United States, 93 F.2d 383 (8th Cir. Mo. 1937).

[xii] Ray v. Blair, 343 U.S. 214 (U.S. 1952).

[xiii] In re Green, 10 S. Ct. 586 (U.S. 1890).

[xiv] Smith v. Allwright, 321 U.S. 649 (U.S. 1944).

[xv] Guinn v. United States, 238 U.S. 347 (U.S. 1915).

[xvi] Burdick v. Takushi, 504 U.S. 428 (U.S. 1992).

[xvii] Anderson v. Celebrezze, 460 U.S. 780 (U.S. 1983).

[xviii] Id.


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